Embrace conflict, be maverick. Hello. My name is Chris. I am a litigation solicitor. I’ve been a litigation solicitor for twenty years, two months, fifteen days (and counting). At a social event for business owners some years ago, seeing two people I knew chatting, I went over to say hello and caught the end of their conversation.
“In the end,” said Tom (not his real name), “ it was pointless, a complete waste of money. The only ones that did well out of it were the lawyers … and here’s Chris.”
Apparently having said his piece, on seeing me, Tom walked away, leaving me to start a new conversation with his companion after a brief awkward pause.
After so many years in the profession, I have heard this most cynical view of litigation expressed countless times. Each time with a true story to back it up. I also read on solicitors’ websites and hear from solicitors and the public alike that litigation should be the last thing you do.
Well, with respect (which means I think you’re talking nonsense), I don’t agree.
Embrace conflict, be maverick! For the purposes of this article, if we define litigation as using court proceedings and the threat of court proceedings to resolve disputes, then I know that litigation works and that it is a cost effective way to get what you want if you are in dispute with someone whose interests are opposed to yours. I also know the sooner you engage in the process the better.
Here’s what you need to do to ensure success; adopt the correct state of mind and put the work in and spend what it takes to prepare your best case. It’s that simple. So, what is the correct state of mind?
The first step is to accept that you are in a dispute with someone. This is often a big step for people to take. I used to think it was an English thing, now I think it is a people thing. Most people will go to extraordinary lengths to avoid conflict, bending over backwards to accommodate completely unreasonable and bullying opponents, to avoid a battle. Don’t do it. Come to terms with the fact that you are in a fight and embrace conflict.
Secondly, be objective from the start and stay objective. Within litigation there is a phrase, “settled at the doors of the court”. It means that the parties have finally come to their senses only when faced with the cost and drama of a trial. The settlement actually being agreed in the meeting rooms outside the court room. If you can view the dispute objectively from the beginning, leaving the anger, the insult and the injury for someone else to stew over, you will have a huge advantage.
How do you prepare your best case? Be honest with yourself. It is human nature to concentrate and accentuate the parts of an argument or dispute that put you in the best light, but don’t do it. Go through the dispute in detail, look at all the emails between the parties, not just the ones you spent most time writing when your sense of righteous indignation was at its highest. Read all documents in full and understand what they actually say and how that relates to the point you want to prove.
After a thorough investigation of all events and documents, work out what they are telling you. Apply the law to the facts. Do you have a winnable case? If so, how much is it worth? There are strict rules in our courts about what losses can be claimed and when. Work out how likely you are to achieve your ideal outcome and how likely you are to achieve an acceptable outcome.
Carry out a cost benefit analysis. The number of books written on costs rules in England is enormous, but the basic principle is that the loser pays the winner costs. Work out how much the different stages of a case will cost you and how likely you are to recover some (you rarely recover all) of those costs. When you’ve done that, work out a strategy to get what you want based on prospects of success and budget. If your case is good and you are prepared to invest in fees, be bullish. If your prospects are poor, make offers to settle based on bluffs of future action. The important thing being that you remember they are bluffs.
Embrace conflict, be maverick …
One of our national diseases is to claim that we are world class in all walks of like, world class response to the pandemic anyone? But, in the case of the civil court system it really is true. Forget what you’ve seen in films and on TV. Most of that is criminal law and based in the US. Both completely different from what we are talking about. The world comes to London to take advantage of the highly structured, disciplined and honest civil justice we have. It’s time to use it.